In the midst of a season that calls to mind the birth of the Christ child, and the upheaval in the world of the occupation by the Roman Empire surrounding the place of his birth, we experience the longest night of the year. December 21 of this year may seem like an even longer and darker night for immigrants crossing our borders and relief workers in communities where those immigrants may be seeking refuge. As a December 21 deadline approaches for the expiration of provisions of the U.S. public health code that have limited the number of migrants entering the U.S. since 2020, cities from El Paso to New York – and many states impacted by immigration along the southern border – are sounding alarms.

On one side of the public health issue, El Paso Mayor Oscar Leeser has apparently declared a state of emergency in advance of an anticipated massive increase in immigrants after December 21, stating that dropping temperatures have already created a humanitarian crisis in the city. Insufficient housing and services have left the migrants, in Leeser’s words, “not safe”.

On the other side of the public health issue, a group of states (Alabama, Alaska, Arizona, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming) have together sought judicial relief, asking that provisions of Title 42 of the U.S. Public Health Services Law that were enforced early during COVID and limiting the entry of immigrants during a public health emergency be extended. Interestingly, some of the states now concerned about extending the Title 42 provisions and continuing to expel migrants to ensure the health of their citizens in an ongoing pandemic were among the first states to challenge public health measures to help rein in COVID infections in their own states.

There are a number of competing claims at issue. Immigrants seeking asylum to avoid persecution in their own countries must be physically present in the U.S. in order to apply for asylum; asylum seekers do not have the option to apply for visas or other authorization to enter the U.S. beforehand. Hence, the southern border becomes the most likely place for asylum seekers – no matter their country of origin – to enter....